Eleanor McGinn v. Broadmead, Inc. - Contract and Negligence Appeal

PUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 25-1028 ELEANOR MCGINN, Plaintiff - Appell ant, v. BROADMEAD, INC, Defendant - Appell ee. ------------------------------ NATIONAL CELIAC ASSOCI ATION; DISABILITY LAW CENTER OF VIRGINIA; AARP; A ARP FOUNDATION, Amici Supporting App ellant. Appeal from the Unite d States District Court for the District of Maryland, at Baltimore. Stephanie A. Gallagher, District Judge. (1:23−cv−02609−SAG) Argued: October 22, 2 025 Decided: February 18, 2026 Before DIAZ, Chief Ju dge, and GREGO RY and BENJAMIN, Circuit Judges. Affirmed in part, vacat ed in part, and remanded. Chief Judge Diaz wrote the opinion, in which Judge Gregory a nd Judge Benjamin joi ned. ARGUED: David John Hommel Jr., EISENBERG & BAUM, LLP, New Yor k, New York, for Appellant. P. Thomas DiStanisla o, WHITEFORD, TA YLOR & PRESTON

2 L.L.P., Richmond, Vir ginia, for Appellee. O N BRIEF: Andrew Rozynski, EISENB ERG & BAUM, LLP, New York, New York, for Appellant. Samuel P. Morse, WHIT EFORD, TAYLOR & PRES TON L.L.P., Bal timore, Maryland, for Appellee. Elle n M. Saideman, LAW OFFICE OF ELLEN SAIDEMA N, Bar rington, Rhode Island; Theodore R. De bonis, Steven C. Schwartz, Al icia Yeo, CHAFFETZ LINDSEY LLP, New York, New York, for Amici National Celiac Association and dis Ability Law Cen ter of Virginia. Will iam Alvarado Rivera, Kelly Bagby, Mary Wi lliam, Genevieve Fo ntan, AARP FOUNDATIO N, Washington, D.C., for Amici AARP and AA RP Foundation.

3 DIAZ, Chief Judge: Eleanor McGinn has c eliac disease and must keep a gluten free diet. On severa l occasions, s he fell ill a fter eating meals at her retirement c ommunity, B roadmead, I nc. So she sued, alleging that Broadmead exposed her to gluten and disc riminated against her. The district court grant ed summary judgment t o Broadmead. McGinn now appeal s the adverse judgment on her state-law breach of contract and negligence claims, as well as three federal- law claim s. Finding that gen uine questions of material fact remain about McGinn’s alleged gluten exposure in January 2021, we vacate the district court’s grant of summary ju dgment to Broadmead on t he breach of contract and n egligence claims arisin g from that inciden t. But we otherwise affir m. I. A. McGinn has celiac dise ase and can’t eat glute n. After B roadmead assured her that it could accommodate her diet, she signed a residential ag reement. Th at contract specified that Broadmead would serve “three nutritional and pro perly cooked meals a day from a choice of well-balanc ed menus.” Joint A ppendix (J.A.) 187. 1. McGinn moved to Broadmead in October 2017. O n February 22, 2018, McGi nn vomited after eating a crab cake that a Br oadmead employee said w as gluten free. She informed a Broadme ad mana ger and as ked whether the c rab cake contained imitation

4 crabmeat, which ha d gluten. The mana ger responded that Br oadmead “only use[d ] r eal crab meat.” J.A. 477. McGinn “let it go” and did n’ t make a ny further inquirie s. J.A. 422. She later stated t hat “[i]n hind sight, I wish I had said, [t]ell me exac tly how you made it. ” J.A. 422. O n June 20, 2020, Mc Ginn ate what she thou ght was a gluten free stuffed tomato. She “developed severe bloating and pain in [her] stomach followed b y vomiting, diarrhea, exhaustion and hives o n [her] hands and leg.” J.A. 291, 430. She informed Broadme ad’s Chief Executive Officer about the i ncident. The Chief Executive Officer responded, confirmi ng that “there wa s a transcripti on error” on the menu and that the stuffed to mato contained gluten. J.A. 290. Then, on January 29, 2021, McGinn ate chicken marsala labeled as g luten free and “became violently ill.” J.A. 442. She reported the incident to Broadmead ’s Vice Preside nt of Health Services, stating, “[t]here is n o way that chicken wa s gluten free because I NEVER vomit unless I consume gluten.” J.A. 592 – 94. Another Broadmead a dministrator instructe d the dining director “to d etermine how this process failed. ” J.A. 597. T he next day, the administrator told McGinn that she had spoken to the di ning d irector and conclu ded: “[s]omewhere al ong the line there was a failure and we will find it.” J.A. 595. 2. McGinn notified the dining director abo ut her “observations, concerns and suggestions regardi ng gluten free food at Broad mead” in January 2019. J.A. 497 – 500. She

5 expressed concern abo ut “a serious lack of communicati on and consistency in presen ting ‘gluten free’ selections. ” J.A. 497. In February 2021, a Broadmead administr ator invited McGinn to a meeting “t o review our [meal preparation] proces s and determine if there ar e other measures we can put into place.” J.A. 5 95. At that meeting, a Broadmead chef said he used Rice Kr ispies as crab cake filler. McGinn res ponded that Rice Krispies aren ’t glute n free, which, in h er view, explained why sh e had gotten sick after eating the cr ab cake in 2018. But the chef only used Rice Krispie s in crab cakes for one week in January 2021, before switching to gluten free bread crumbs. A different chef made the crab cake i n 20 18, and he also used gluten free bread crumbs. T he administrator later emailed McGinn, stating that Broadmead ’s crab cake recipe calls for “only gluten free breadcrumbs.” J. A. 598. She told Mc Ginn that Broadmead “changed out [its] r ice flour bi n and. . . als o moved the lo cation of the bin so there isn’t a possibility of any cross contamination.” J.A. 598. 3. McGinn stopped eating at Broadmead’s dining venues around Februar y 2021. In March 2023, Broa dmead offered to let Mc Ginn “ opt out of [her] Residence and Care Agreement meal plan” and to appl y a credit to her account. J.A. 28 5. McGinn di d n’t accept. S he continue d using her meal plan to request gluten free f ood, which she gave away.

6 I n May 2023, Broad mead’s Chief Executive Officer invited McGin n to “provide a list of gluten free brea d products, desser ts, and pasta dishes t hat [she] would like to see available in the Broad mead dining venue s.” J.A. 287–88. Mc Ginn did so. Broadmead also had several staff memb ers complete a “gluten fre e certification program.” J.A. 5 28 – 47. A dditionally, i t crea ted a separate, glute n free kitche n space and expanded its glute n free food offerings. McGinn’s exper t stated th at Broadmead “made the right remedies” and is “now in a different p osition and a place in accommodat ing [her ] needs.” J.A. 737– 38. B. McGinn sued Broad mead on September 26, 2023, alleging violations of the Americans with Disabi lities Act, the Rehabili tation Act, and the Fai r Housing Act. She also asserted six state-law claim s: br each of contract, negligence, negligent misrepresentation, br each of express wa rranty, breach of implied warr anty of merchantability, and br each of implied warran ty of fitness for a pa rticular purpose. McGinn moved f or a preliminary injun ction, which the distr ict court denied. McGinn v. Broadmead, Inc., 1:23 - cv - 0 2609 - SAG, ECF No s. 7, 19. She then move d for partial summary judg ment on her t hree federal claims, a nd Broadmea d moved for summary judgment on all nine claims. McGin n, 1:23 - cv - 02609 - SAG, ECF Nos. 38 – 39. Th e court denied McGinn’s moti on and granted Broad mead ’s. McGinn, 1:23 - cv - 02609 - SAG, ECF No. 54. McGinn appeals the district court’s order, but o nly as to her three federal -law claims and her state-law brea ch of contract and ne gligence claims.

7 II. We first assess whether McGinn has standing to seek injunctive re lief under the Americans with Disabi lities Act. To have standing, a plaintiff must show an inj ury in fact, which is “(a) concrete and particularized, and (b) actual or imminent.” Laufer v. Naranda Hotel s, LLC, 60 F.4th 156, 161 (4th Cir. 2023) (qu oting Lujan v. Defs. of Wildlife, 504 U. S. 555, 560 (19 92)). When seeking injunc tive relief, “ the plaintiff must also show a ‘ real or immediate threat that [she] will be wronged again. ’ ” Id. (quoting City of L.A. v. Lyons, 461 U.S. 9 5, 111 (1983)). “The party invoking feder al jurisdiction bea rs the burden of establishing s tanding – and, at th e summary judgment stage, such a party can no longer rest on mere allegations, but must set forth by affidavit or other evidence specific facts.” C lapper v. Amnesty Int’l USA, 568 U.S. 398, 411 – 12 (2013) (ci tation modified). McGinn contends that she has standi ng because she “ repeated ly became sick after eating purportedly gluten - free meal s prepared by [Broadmea d and elsewhere].” Appellant’s Br. at 29 (citation modified). But past injur y alone is n’t enough to sho w McGinn “will be wro nged again” and does n’ t confer sta nding to enjoi n a speculative future injury. Lyons, 461 U.S. at 111. McGinn also clai ms that she has standing beca use she faces continuing harm. Why? Because Broa dmead’s policies deter her fro m eating at its facilit ies and inflict economic harm.

8 Neither injury establish es sta nding here. McGinn misreads our case s when s he asserts that deterrence alone is sufficient for standing. See Appellant’s Br. at 32 (citing Nanni v. Aberdeen Marketplace, Inc., 878 F.3d 447 (4th Cir. 2017) and Daniels v. Arcad e, L.P., 4 7 7 F. App’ x 125 (4th Cir. 2012)). To be sure, we ’ve allowed an Americ ans with Disabilities Act plaintiff to demonstrate the likelihood of future injury by alleging past injury and a plausible intention to return for the service. See Nanni, 878 F.3d at 455 – 56; Daniels, 4 77 F. App’x at 130. B ut we decided those appeals at the motion to dis miss stage. At summary judgme nt, it’s not enoug h for McGinn to claim that she “obviously has a plausible intent” to re sume eating at Broadm ead. Reply Br. at 6. S he must proffer fac ts and evidence. See Cla pper, 568 U.S. at 411–12. But she hasn’t pointed to anyth ing to show she would ever eat again at Broadmead. Just the opposite: ev en a fter Broadmead implemented the cha nges McGinn requeste d, she still refused to ea t there. Nor has McGinn suffer ed economic harm. Si x months before she sued, Broadmead agreed to let her opt out of its meal plan. McGinn declined and continue d to order a nd receive gluten free me als that she g ave away. Because McGinn lacks standing, we can’t review her Americans wi th Disabilities Act clai m for injunctiv e relief. III. A. Next, we turn to Broad mead’s argument that McGinn forfeited re view of her Fair Housing Act and Reha bilitation Act claims.

9 When a litigant doe sn’ t “present any argumen t in its opening brief taking issue with [a] facet of t he district court’s holding,” we will “conclu de that it has [f orfeited] any challenge to the district court’s judgmen t on that ground, and we will affirm.” Foodbuy, LLC v. Gregory Packa ging, Inc., 987 F.3d 10 2, 120 (4th Cir. 2021). In her opening brief, McGinn addresse d onl y the firs t part of the district court’s reasoning that her federal claims accrued in Jan uary 2019 and s o were untimely. She didn’t address the court’s h olding that the c ontinuing violation doctrine, whi ch tolls the limitati on period for new violations, doesn’t apply for failure to accommodate claims outs ide the hostile workplace cont ext. See J.A. 818 (citing Szedlock v. T enet, 61 F. App’x 88, 93 (4th Cir. 2003)). Bec ause McGinn d idn’t address the court’ s alternate g round for dismissing her Fair Housing Act a nd Rehabilitation Act c laims, she has forfe it ed the challenge. B. In any event, the statut e of limitations bars M cGinn’s federal claims. 1. Fair Housing Act claims have a two - year limitations period, see 42 U.S.C. § 3613(a)(1)(A), and because the Rehabilitation Act does n’ t specify, we apply Marylan d’s general three - year limitations rule, s ee Md. Code Ann., Cts. & Jud. Proc. § 5 - 101 (West 2025). We review a distric t court ’s statut e of limitations decisio n de novo. See Chambe rs v. N.C. Dep’t of Just., 66 F.4th 1 39, 141 (4th Cir. 2023). “A civil rights claim accrues when the plaintiff kn ows or has rea son to k now of the injury which is the basi s of the action.” A Soc’y Without A Name v. Virginia, 655 F.3d 3 42, 348 (4th Cir. 2011) (citation

10 modified). But, under the continuing violati on doctrine, if a pla intiff “can show that t he illegal act did not occur just once, but rat her in a series of separate acts, and if the same alleged violation was committed at th e time of each act, then the limitations period begins anew with each violati on.” Id. (citation modi fied). 2. McGinn contends that the district court erre d in holding that her federal claims accrued in Janu ary 20 19 when she first informed Broadmead of its alleged failure to accommodate her disab ility. She says that her communica tions with Broadmead in March 2023 constitute d a new violation, which restarted the limi tations period. That’s not right. The unpublished case that M cGinn cites, Hill v. Hampstead Le ster Morton Ct. Partners LP, holds that “a plaintiff who renews a request for a previousl y denied accommodation may bring suit based o n a new discrete act of discrimination if the defendant again denies the request.” 581 F. App’x 178, 181 (4th Cir. 2014) (c itation modified). But Broadmead didn’t deny McGinn’s request. When McGinn asked for more gluten free options in March 2023, Broadmead assured her that its “Dining a nd Hospitality team continually identi fies new products for all diet types and integ rates them into [its] dining program.” J.A. 285. Broadmead’s Chief Executive Officer al so invited McGinn to provide a list of gluten free options she’d like Broadmead to offer, an d McGinn sent her a list. There’s no eviden ce of a new violatio n.

11 Because McGinn’s clai ms accrued in Janua ry 2019, the limitations periods for t he Fair Hous ing Ac t and the Rehabi litation Act ended in J anuary 2021 and January 2022, respectively. She didn’t file suit until Septemb er 2023, which was t oo late for either clai m. IV. We turn n ext to McGinn’s conten tion that Maryland’s discover y rule saves her breach of contract a nd negligence claims premised on an alleged gluten exp osure from a crab cake in February 2 018. A. Generally, Maryland a pplies a three - y ear limitations period for civi l claims. See Md. Code Ann., Ct s. & Jud. Proc. § 5 - 101 (West 202 5). But the d iscovery rule provides an exception. It pr otects plaintiffs “ where it was not reasonably possible to have obtained notice of the nature an d cause of an injury,” and it tolls the limitati ons period “until the time the plaintiff discovers, or throu gh the exercise of diligence, sho uld have discovered, the injury.” Frederick Rd. Ltd. P’ ship v. Brown & Sturm, 756 A.2d 963, 973 (Md. 2000). Maryland courts a pply a two-part test to determine whet her the exce ption appl ies. First, they ask whethe r the claimant had the “actual knowle dge necessary to cause an ordinarily diligent pl aintiff to make an inquir y or investigation.” S tate Auto. Mu t. Ins. Co. v. Lennox, 422 F. Supp. 3d 948, 964 (D. Md. 2019) (citation modified). Second, they a ssess whether “a reasona bly diligent inquiry would have disclosed whether there is a ca usal connection between t he inquiry an d the wr ongdoing.” I d. W hether “a party is on inquiry

12 is not always a questio n of fact, and not alwa ys a question for the ju ry.” Est. of Adams v. Cont’l Ins. Co., 161 A. 3d 70, 91 (Md. Ct. Spe c. App. 2017). B. McGinn asserts that the district court err ed in determining that the limitations per io d barred her breach of contract and negligen ce claims arising from the alleged gluten exposure in 2018. McGinn think s the co urt should have applied the discovery rule becau se “ she did not know — and could not have kn own —until [February] 2021 ” that Broadmead used gluten containing Rice Krispi es as a filler in its crab cak es. A ppellant’s Br. a t 46; J.A. 46. But McGinn doesn’t s atisfy the conditions to invoke the discovery rule. After McGinn became ill, sh e contacted Broadmea d staff to ask whether the crab cake she’d consumed contained imitation cr abmeat. Br oadmead confirmed that it d idn’t, and she “let it go” without making any further inquiries. J.A. 422. McGinn later conceded that she wished she had asked h ow Broadmead pre pared the crab cake but didn’t. So McGinn had actual knowledge of bo th the need to inq uire and that her limit ed inquiry wasn’t reasonably diligent. Because McGinn’ s alleged gluten exposure occurred in February 2018, the three - year limitations period ran in February 2021. She didn’t file suit until September 2023, so her breach of contract and negligence claims arising from that incident are barred by the statute of limitations.

13 C. In any event, McGinn can’t prevail on th ose claims because the evidence that she suggests creates a dispute of a mate rial fact is speculati ve. See Un ited States v. 8.92 9 Acres of Land, 36 F.4th 240, 252 (4th Cir. 2022) (“[T]he nonmoving party must rely on more than conclusory allegations, mere speculat ion, the building of one inference upon another, or the mere existence of a scintilla of evide nce.” (citation modified)). McGinn contends tha t because Broadmead’s chef told h er that he used gluten containing Rice Kri spies to make a crab cake in 2021, Broadmead must have done the same in 2018. But the evidence doesn’t support t hat conclusion. The c hef who prepared the crab cake in 2021 use d Rice Kris pies f or “[p]robably no longer than a week” before switching to a glute n free alternative, an d the other chef who made the crab cake i n 2018 used gluten free brea d crumbs. J.A. 373, 677. McGinn identifies no c ontradictory evidenc e and so her claims fai l on the merits. V. Lastly, we assess whether the distric t court erred by granting summar y judgment to Broadmead on McGinn’s breach of contract an d negligence claims from an alleged gluten exposure after she ate c hicken marsala in Ja nuary 2021. We agree wit h McGinn that it did. McGinn contends that the dis trict court so erred becaus e it didn’t c onsider all the evidence. She emphasizes that the cour t didn’t account for the Broadmead administrator ’ s statements that 1) she instructed the d ining director “to determine ho w this process faile d,”

14 J.A. 597, and 2) “[s]omewhere along the line there was a failure and we will find it, ” J.A. 595. McGinn is right that t he district court overl ooked the administrato r’s statements when conc luding that McGinn did “not adduce[] sufficie nt non - spe culative evidence to show that this amounte d to a breach [of contract]” or “a duty of care.” J.A. 827, 829. The statements acknowledging a failure are sufficient to create a genuine issue of material fact. A jury may well find that the statements are admissions of wrong doing. O r a jury may find that they are mere promises that Broadmead would investig ate the matter, without accepting responsibilit y. But that’s for a jury to decide and weigh alongside the other evidence. * * * In sum, we va cate the d istrict court’s grant of summary judgment for Broadmead on McGinn’s breach of contract and negligen ce claims arisin g from the alleged glut en exposure in Jan uary 2021. W e remand for further proceeding s on those claims. We otherwise affirm. AFFIRMED IN PART, VACATED IN PART, A ND REMANDED